Though NPR spun this as honoring African Americans, I think this has a lot more to do with neo-Confederate history about loyal slaves who fought for (or in this case worked as servants to) the Confederacy. Thus, I'd classify this more as a modern day faithful slave monument than as a monument to the achievements of African Americans.

One other thing: the story I linked to above from the Charlotte Observer mentions that many years later those people received small state pensions as Civil War veterans. I've been meaning to look systematically at the southern state pensions to African Americans. The last time I started investigating this, I focused on South Carolina -- and as I recall the state started giving pensions to African American "veterans" substantially later than it gave them to white veterans.

Update: Here is the Charlotte Observer story about the dedication ceremony. As I predicted, the slaves are being used to promote Confederate heritgage. But what I found of particular interest is that one of the people there is the daughter -- yes, daughter, not remote descendant -- of one of the slaves. She was born in the 1920s, when her father was elderly.

As expected, the Supreme Court has agreed to hear the
same-sex marriage cases. Come June of
2013 we will know more than now about these matters, but what will we
know? Here are some speculations.

United States v. Windsor poses the
question of whether section 3 of DOMA violates the equal protection
guarantee. That section denies any of
the status benefits of marriage under federal law to couples of the same sex
who are lawfully married under state law.
The threshold issue is whether the Court lacks jurisdiction because the
federal government agrees with the 2d Circuit decision or because the House
leadership lacks standing to defend DOMA.
The question is whether the House leadership has suffered actual
particularized injury in fact. The
liberal four on the Court are usually easy to satisfy on standing issues, but
if they sense that the ruling on the merits is likely to be adverse to their
views, they may suddenly become standing hard-liners. And the conservatives, who can usually be
counted on to confine standing, may become standing liberals if they sense that
they will prevail on the merits.

On the
merits, if the Court continues to apply minimal scrutiny to this classification
on the basis of sexual orientation, the challengers must prove either that
there is no conceivable legitimate purpose for the classification or that there
is no conceivable rational connection between a hypothetical legitimate purpose
and the classification. In theory, the
challengers have a tough road under this test:
It is certainly a legitimate
purpose to conserve money, or to limit the cost of such benefits to the marital
relation that was understood to exist at the time Congress enacted these
benefits, and denying federal marital benefits to same-sex couples does just
that. It is at least conceivably
rational for Congress to think that denying those benefits to lawfully married
same-sex couples furthers the government’s interests in conserving money and
limiting benefits to persons married in the form that Congress understood
marriage to be when it extended the benefits.
But this analysis will strike most people as much too thin. If that is so, it is because the distinction
between lawfully married same-sex couples and lawfully married opposite-sex
couples seems to be illegitimate. And
here the argument veers into federalism – Congress chose to rely upon state
definitions of marriage when it extended federal benefits to married couples so
it implicitly incorporated state choice into the federal scheme. Having done so, DOMA can be characterized as
an act of spite, a burst of legislative hostility to homosexuals that, as in Romer
v. Evans, is the real purpose of the law, and thus as illegitimate as
Colorado’s Amendment 2 or the legislative attempt to deny food stamps to hippie
households, struck down in USDA v. Moreno.
So, on the merits the Court can (1) apply minimal scrutiny uncritically
(and uphold section 3 of DOMA), (2) apply the Romer tactic of characterizing the actual purpose of the law to be
illegitimate (and strike sec. 3 while still adhering to minimal scrutiny), or (3)
jack up the level of scrutiny to intermediate or strict in order to void sec.
3. Which will it do? I’ll bet on (2), with Justice Kennedy joining
the liberals to find standing and reach the merits conclusion I have
outlined.

Hollingsworth v. Perry is the California
Proposition 8 case. The California
Supreme Court ruled that the state constitution compelled recognition of
same-sex marriage, the voters then overturned the decision by a constitutional
amendment, and this litigation ensued.
The Ninth Circuit, in an opinion by Judge Reinhardt, ruled that since
the only effect of the amendment was to deny the label of “marriage” to
same-sex unions (because California’s domestic partnership law continued to
extend all the status benefits of marriage to registered domestic partners), Proposition
8 was a mere expression of animus towards homosexuals and thus akin to Romer and Moreno. Again, the Court has asked for briefing on
the standing question, as California declined to defend Prop 8 and its
defenders became the proponents of the proposition. Much the same standing dance may occur here
as in Windsor, but there are some
complicating elements. First, what’s the
effect of a conclusion that there was no standing? Does it result in a vacation of the District
Court decision as well as the Ninth Circuit ruling, or only a vacation of the Ninth
Circuit opinion? If the former, it’s
back to square one (assuming the leftist Governor and Attorney General of
California decline to defend Prop 8). If
the latter, Judge Walker’s decision stands but may only provide relief to the
litigants before him.

The merits
raises the large and divisive question of whether the political process should
be foreclosed by a Court ruling striking down bars to same-sex marriage, or
whether the rapid evolution of marriage laws in the states should be permitted
to continue on a state-by-state basis.
Given the vexing legacy of Roe v. Wade, it would not surprise me if the
Court decides on the latter course. If
so, it could do so by finding a lack of standing (which result provides only a
brief reprieve from the issue, as other cases will come to it with litigants
that undeniably have standing), or by a merits ruling that finds no
constitutional violation in limiting marriage to opposite-sex partners (a
result that would inflame gay activists but which leaves states free to change
their laws as public opinion evolves).
That result may not be unpalatable to the Court if it strikes section 3
of DOMA on the merits, as I speculate above.

We shall see, but as with icebergs we
shall see only the tip and are left to speculate about the mass under the
surface.

December 07, 2012

To commemorate this 71st anniversary of Pearl Harbor and America's sudden plunge into the terrible maelstrom of World War II, here are my nominees for the best sea/naval novels of World War II:

1. The Cruel Sea, Nicholas Monsarrat

2. The Caine Mutiny, Herman Wouk

3. Run Silent, Run Deep, Edward Beach

Of the three, Monsarrat best captures the pain, the endurance, the heroism that is duty performed. Wouk best portrays the development of callow youngsters into grown men, and Beach best depicts the tense oscillation between hunter and hunted in the nasty business of submarine warfare. Do you have other nominees -- for novels of the naval war of World War II?

The Postal Service has commissioned a commemorative “forever”
stamp in recognition of the sesquicentennial of the Emancipation
Proclamation. Stamps are (appropriately)
not shipped until January, but are available for pre-sale now. The Emancipation Proclamation stamp is one of three stamps
in a “civil rights set” that the Postal Service has commissioned for 2013. One of the other stamps commemorates the
birth of Rosa Parks. The third stamp in
the set has yet to be revealed.

I think the stamp is a great idea (and I will use these
throughout the next year); I wonder, though, why the Proclamation is lumped together
with the civil rights movement. Presumably, the historians at the Postal Service are aware of the
Proclamation’s history (including the 1862 Preliminary Proclamation) and
desired effect; it was never intended to – and never did - grant “rights” to
any person. The Proclamation effectuated
a war goal, and clarified for Union forces how enslaved refugees (or “contraband”)
ought to be treated under the rules of war (in parts of the Union-occupied
Carolinas, for example, several thousand persons were “freed” due to the
Proclamation). While its symbolism sent
a powerful message to enslaved people in the Confederate and border states (and
more broadly, to the nation and Europe), relatively few walked free because of
its dictate. In fact, outside of
Union-occupied territory, tens of thousands of enslaved men and women would subsequently
have to risk life and limb to reach Union lines in order to realize the
Proclamation’s promise. Steve Hahn’s excellent
book (A Nation Under Our Feet, on Amazon)
is great on this point – between Fort Sumter and Appomattox, enslaved folks
took emancipation into their own hands and (at least physically) freed
themselves. Do these self-emancipators have a place in traditional tellings of
this story? Do they have a place in our
legal histories of this period? Was the Proclamation a "civil rights" act?

32.9% No, but it should consider other aspects of diversity, like socioeconomic status

6.9% No opinion

Should Brown consider race when hiring professors?

35.1% Yes

40.9% No

14.7% No, but it should consider other aspects of diversity, like gender

9.4% No opinion

I find these results startling. Nearly three in five Brown students oppose the consideration of race in student admissions, and more than half oppose the consideration of race in faculty hiring. My Brown classmate ('84) and co-blogger Dan Filler might have a different recollection, but I think these numbers would have been much higher in favor of the consideration of race when we were students there. (And note that Brown's student body remains quite stereotypically liberal: the same poll revealed that two-thirds planned to vote for Barack Obama and just 7% for Mitt Romney, and that more than eighty percent support the abortion rights.)

I would also imagine that a poll of the faculty at Brown would reveal much stronger support for the consideration of race in student admissions and faculty hiring than the student poll revealed. I am pretty certain that a poll of faculty at my home institution of UNC-Chapel Hill would reveal stronger faculty support for the consideration of race than the poll of Brown students revealed.

I wonder whether the Brown polling data reveal evidence of a generational shift on the relevance and meaning of race in education.

The Faculty of Law at the University of Calgary is
looking to make up to six tenure track appointments. Like the city of Calgary
itself, Calgary Law is in a period of exciting development and growth, and
these appointments build upon four new appointments made this past year.

December 05, 2012

Many of us, I’m sure, have been the faculty advisor for a student’s independent study paper. I don’t do this often, not because I don’t like doing it, but because I have the earned reputation of being a hard grader. Over this fall, however, one of my brave students wrote a very good paper dealing with the standards associated with granting zoning variances.

For the non-property law scholars out there, the traditional and almost universal rule is that a variance cannot be granted without a showing of a substantial hardship (or similar standard). Her paper argued that this standard was inappropriately high on the merits and is, in reality, almost universally ignored at the local level.

When I have taught zoning in my property class, I presented the standard view fairly uncritically. It seemed easy to justify: zoning is to serve the public good and if exceptions are too easily made, it rapidly becomes a tool that serves the ones who are wise (or rich) enough to apply for a variance. Somewhat surprisingly, I’ve continued to mirror the standard line even after I started serving on my local zoning board which grants many a variance of dubious merit. I don’t think I can teach the subject the same way this year, so it is time to rebuild the material on variances.

I have always seen independent studies as a good way of allowing a student to do in-depth research on a topic. After almost thirty years in the academy, its time to acknowledge their broader potential.

George Washington Law some unswanted publicity lately regarding the selection of its new Interim Dean. The issue is hot right now, it appears. David Lat lays matters out in distinctly un-UTR fashion here.

I really don't know enough about this to have any comment, but I also think that it's sufficiently important to give it a bit of space here.

Thank you, Dan, for the kind words and giving me the chance to join you here. With the recent news that BP has agreed to plead guilty to 14 criminal counts, including manslaughter, and pay to DOJ more than $4 billion to resolve all criminal charges stemming from the 2010 Deepwater Horizon blowout, I have been thinking much about an issue I haven’t thought much about since my days in practice as an aviation litigation attorney, namely the criminalization of what traditionally had been treated as simply tortious. Excluding, of course, criminal investigations of intentional terrorist activity such as in the wake of Pan Am 103 and activity on 9/11, criminal investigations and prosecutions of transportation accidents were actually few and far between until we saw an uptick beginning in the early to mid-1990s beginning with the crash of Air-Inter flight 148 in Strasbourg, France, ValueJet flight 592 and then the Concorde crash in 2000. More recently, a criminal investigation has been launched into the April 2012 crash of a 737 outside of Islamabad. I and many of my former colleagues and former FAA Chief Counsel, Ken Quinn, see here, have grave concerns about the negative impact that criminalization of tortious activity has on the ability of safety agencies both inside and outside the aviation arena to comprehensively investigate the cause of the accident and improve the safety of the activity that led to the harm (i.e., air safety, oil drilling safety) and prevent future incidents. In practice, when criminal prosecution became a real possibility we saw the immediate “lawyering up” of key employees with potentially important safety-related information and the resultant non-cooperation or diminished cooperation in the safety investigation for fear of criminal prosecution. How do we prevent the next Deepwater Horizon blowout if employees won’t talk to the safety investigators?

We're very pleased to welcome Beth Haas as a guest blogger here at the Faculty Lounge. Beth is a colleague of mine here at Drexel, serving as an Assistant Teaching Professor of Law and Faculty Director of Online Education. Among her more remarkable achievements is that she's sold an exceptionally skeptical faculty on the idea that online can match live courses for quality and student engagement.

Beth is a graduate of the University of Pennsylvania and Villanova Law, and brings deep experience in the areas of products liability, toxic torts and aviation law. Welcome to the Lounge!

December 04, 2012

It seems hard to believe, but apparently several businessmen have decided to open a new law school in Daytona Beach. Unfortunately, they've just gotten a rude surprise: the old police station they'd planned on using for opening Florida's twelfth law school turns out to be too small. While the city had promised 55,000 square feet in the facility, it turned out that appraisers could only scrounge up 38,000 square feet inside. The city's records were off by 45%. Oops!

We can only hope that this will delay the Grand Opening.

The owners say they plan a low cost institution - 35% cheaper than a "traditional law school" - that doesn't have much in the way of "vanity courses." According to the Daytona Times, "the idea is to open with a staff of approximately 80 people, including 12 full-time and adjunct professors."